People v. Smith

Decision Date05 December 1988
PartiesThe PEOPLE, etc., Respondent, v. Darrell SMITH, Appellant.
CourtNew York Supreme Court — Appellate Division

Philip L. Weinstein, New York City (Andrea Hirsch, of counsel), for appellant.

Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood and Andrew J. Frisch, of counsel), for respondent.

Before BRACKEN, J.P., and LAWRENCE, SPATT and HARWOOD, JJ.

BRACKEN, Justice Presiding.

In People v. Seaberg, 139 A.D.2d 53, 530 N.Y.S.2d 278, lv. granted 72 N.Y.2d 1049, 534 N.Y.S.2d 949, 531 N.E.2d 669 [1988], this court recently recognized the validity of a waiver by a defendant in a criminal case of his right to appeal. In two cases decided shortly after People v. Seaberg, the Appellate Division, First Department, refused to give effect to similar waivers (People v. Bourne, 139 A.D.2d 210, 531 N.Y.S.2d 899; People v. Ventura, 139 A.D.2d 196, 531 N.Y.S.2d 526). The present appeals provide us with the opportunity to remove whatever doubt these decisions may have cast upon the continued validity of our holding in the Seaberg case, which we now reaffirm.

In the present case, the defendant was sentenced pursuant to negotiated plea bargains. It is beyond dispute that one of the terms of those bargains consisted of the defendant's waiver of his right to appeal, and that this waiver was made knowingly and voluntarily. In violation of his agreement not to do so, the defendant has appealed to this court for the sole purpose of arguing that the sentences imposed upon him were unduly harsh and excessive (cf., People v. Bourne, supra ).

The general rule is one of simple logic: there is no reason why a litigant in a civil or criminal case should be precluded from intelligently waiving a substantive or procedural right which exists in his favor in order to induce his opponent to make certain concessions in return. If there is no constitutional, statutory or public policy mandate prohibiting it, an accused may waive any right which he may enjoy (see, Schick v. United States, 195 U.S. 65, 24 S.Ct. 826, 49 L.Ed. 99).

In People v. Bourne (supra ), a divided panel of the First Department departed from this general rule, and held that a defendant may not waive his right to appeal from the sentence imposed upon him as part of a plea bargain. The court in Bourne (supra ) cited no constitutional or statutory provision and no binding precedent as support for the proposition that a defendant may not effectively waive his right to appeal to the Appellate Division from the sentence imposed upon him. The binding precedent furnished by the decisions of the Court of Appeals (see, People v. Williams, 36 N.Y.2d 829, 370 N.Y.S.2d 904, 331 N.E.2d 684 [upholding the waiver of a defendant's right to seek review of a pretrial suppression ruling which otherwise would have been reviewable on an appeal from a judgment of conviction]; see also, People v. Esajerre, 35 N.Y.2d 463, 363 N.Y.S.2d 931, 323 N.E.2d 175), however, supports the conclusion reached by this court in the Seaberg case, namely, that the right to appeal from judgments of conviction in criminal cases may be waived.

Several decisions of the Court of Appeals also contain dicta which clearly indicate that a defendant may waive appellate review not only of pretrial rulings (People v. Williams, supra; see also, People v. Coles, 62 N.Y.2d 908, 910, 479 N.Y.S.2d 1, 467 N.E.2d 885) but of other issues as well, including the propriety of the sentence. In People v. Melton, 35 N.Y.2d 327, 329, 361 N.Y.S.2d 877, 320 N.E.2d 622, the court stated that "[b]y pleading guilty [a defendant] evinces, prima facie, an intention to forego appellate review of his conviction" (citing People v. Lynn, 28 N.Y.2d 196, 202, 321 N.Y.S.2d 74, 269 N.E.2d 794). This statement would be meaningless if appellate review of a criminal conviction were something which one could not forego. Similarly, in People v. Thompson, 60 N.Y.2d 513, 520, 470 N.Y.S.2d 551, 458 N.E.2d 1228 [holding that the Appellate Division may modify a bargained-for sentence without allowing the People to withdraw their consent to the plea], the court stated that "the defendant did not expressly waive this right to appellate review [of the sentence imposed] at the time he pleaded guilty". Again, this statement would be meaningless if we were to accept as true the proposition that an express waiver of the right to appeal from a sentence has no effect.

The decision in the Bourne case may find support in the case law of a minority of other jurisdictions, but the courts of most states hold that the right to appeal may be waived (see, State v. Perkins, 108 Wash.2d 212 737 P.2d 250; State v. Gibson, 68 N.J. 499, 348 A.2d 769; State v. Dover, 114 Ariz. 141, 559 P.2d 697; People v. Nichols, 143 Ill.App.3d 673, 97 Ill.Dec. 870, 493 N.E.2d 677; State v. McKinney, 406 So.2d 160 [La.]; People v. Charles, 171 Cal.App.3d 552, 217 Cal.Rptr. 402; Ferina v. State, 742 S.W.2d 215 [Mo.]; Gwin v. State, 456 So.2d 845 [Ala.]; Staton v. Warden, 175 Conn. 328, 398 A.2d 1176; Barlow v. Lopes, 201 Conn. 103, 513 A.2d 132; see also, Annotation, Plea Agreement-Waiver of Right to Appeal, 89 A.L.R.3d 864).

The rule of nonwaivability announced in the Bourne case creates several logical difficulties. We begin with a statement of the obvious, namely, that the prosecution never has a duty to plea bargain. The prosecution may, in any particular case, or in every case, unconditionally refuse to engage in plea bargain negotiations altogether, and it has the absolute right to offer only those plea bargains which it deems advantageous, just as a defendant will accept only those offers that he deems advantageous to himself. It is this "mutuality of advantage" which accounts for the prevalence of plea bargains in American courts (see, Brady v. United States, 397 U.S. 742, 752, 90 S.Ct. 1463, 1471, 25 L.Ed.2d 747). If the prosecution may unconditionally refuse to plea bargain at all, it follows that it may plea bargain only under such conditions as it deems appropriate, provided, of course, that the terms of the conditions imposed do not require a party to the bargain to act in a manner contrary to law (see, e.g., People v. Miller, 79 A.D.2d 687, 688, 434 N.Y.S.2d 36 ["reasonable" conditions may be attached to a plea bargain] ). Since it is clearly not illegal for a convicted criminal to refrain from appealing, we see no basis for holding that a defendant may not be required to waive his right to appeal in return for a measure of clemency which might otherwise not be vouchsafed to him.

Additionally, it is clear that a defendant who neglects to file a timely notice of appeal and who also neglects to seek an extension of time within which to do so, may, under certain circumstances, forfeit his right to appeal (see, generally, CPL 460.10[a]; 460.30; People v. Montgomery, 24 N.Y.2d 130, 299 N.Y.S.2d 156, 247 N.E.2d 130; People v. Thomas, 47 N.Y.2d 37, 43, 416 N.Y.S.2d 573, 389 N.E.2d 1094 [courts lack power to modify statutory time limitations for taking appeals]; People v. Corso, 40 N.Y.2d 578, 580-581, 388 N.Y.S.2d 886, 357 N.E.2d 357; People v. McDonough, 87 A.D.2d 727, 449 N.Y.S.2d 331). A defendant may also forfeit his right to appeal by absconding (see, e.g., People v. Barnes, 143 A.D.2d 837, 533 N.Y.S.2d 383; People v. Southerland, 136 A.D.2d 662, 523 N.Y.S.2d 779; People v. Flemming, 104 A.D.2d 1048, 480 N.Y.S.2d 882).

Furthermore, it is anomalous to suggest that the right to appellate review of a sentencing determination is nonwaivable, even though other rights of greater importance may be waived. The right to a trial by jury, for example, which has been considered to be the most fundamental of all rights reserved to the criminal defendant (see, People ex rel. Rohrlich v. Follette, 20 N.Y.2d 297, 301, 282 N.Y.S.2d 729, 229 N.E.2d 419; People v. Davidson, 136 A.D.2d 66, 69, 525 N.Y.S.2d 855) may be waived by virtue of a plea of guilty. As a bulwark against oppressive conduct by the State and as a central procedural safeguard designed for the protection of the innocent, the ancient right to trial by jury must be considered more basic than the right to appellate review. The right to a trial by jury in a criminal case is one which is implicit in the constitutionally protected right to due process of law (U.S. Const. 14th Amend.; N.Y. Const., art. I, § 6; Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491), whereas the right to appellate review is not (see, Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 3312-13, 77 L.Ed.2d 987 [no Federal constitutional right to appeal] ). The right to a jury trial is a right secured to citizens who are presumptively innocent of any crime, while the right to appellate review exists in favor of citizens who have been found or have pleaded guilty. The notion that the right to appeal one's sentence may not be waived, and should be accorded greater sanctity than constitutionallyprotected due process rights, such as the right to a jury trial which may be waived, is ill-conceived.

"The reasoning of those courts which invalidate pleas conditioned on defendant's agreement to waive his appeal right seems curiously at odds with the widely-accepted theoretical underpinnings of the plea bargaining system. While the right to appeal is an important right, it is no more fundamental than the right to a jury trial or the privilege against self-incrimination. Yet almost all courts have agreed that defendants can waive those rights by pleading guilty" (J. Bond, Plea Bargaining and Guilty Pleas § 5.14, at 5-29 [2d ed 1983], quoted and cited with approval in State v. Perkins, 737 P.2d 250, 252, supra ).

Further, the isolating of what could be viewed as the single issue (excessiveness of sentence) which of all the various legal questions which may be raised in a criminal appeal is, in general, the least likely to have any merit, and then conferring upon that single issue a special...

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